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Myers v. State

Court of Appeals of Arkansas, Division I

November 15, 2017

DAVID MYERS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-99-825] HONORABLE JODI RAINES DENNIS, JUDGE

          Melissa Sawyer, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee.

          N. MARK KLAPPENBACH, Judge

         David Myers appeals from the order of the Jefferson County Circuit Court denying his petition to terminate his obligation to register as a sex offender. On appeal, Myers contends that the circuit court erred in concluding that he had committed an aggravated sex offense and was thus not eligible to have his obligation terminated. We agree with Myers and reverse and remand.

         In 2000, Myers pleaded guilty to sexual abuse in the second degree, a Class A misdemeanor. He was placed on probation for twelve months and ordered to register as a sex offender. After registering for more than fifteen years, Myers filed a petition in 2016 to terminate his obligation to register pursuant to Arkansas Code Annotated section 12-12-919 (Repl. 2016). This statute provides that fifteen years after having been released from incarceration or after having been placed on probation, a sex offender may petition the court to terminate his or her obligation to register upon proof by a preponderance of the evidence that the applicant has not been adjudicated guilty of a sex offense during the past fifteen years and is not likely to pose a threat to the safety of others. Ark. Code Ann. § 12-12-919(b). However, lifetime registration is required for certain categories of sex offenders, including a sex offender who was found to have committed an aggravated sex offense. Ark. Code Ann. § 12-12-919(a)(1). The State contended that Myers was subject to lifetime registration because he had committed an aggravated sex offense by engaging in a sexual act with a person younger than twelve years of age.

         Following a hearing, the circuit court entered an order denying Myers's petition. The court concluded that Myers had committed an aggravated sex offense, which is defined as "an offense in the Arkansas Code substantially equivalent to 'aggravated sexual abuse' as defined in 18 U.S.C. § 2241 as it existed on March 1, 2003." Ark. Code Ann. § 12-12-903(3). The court's order stated as follows:

The federal statute contains several methods under which an offense is aggravated sexual abuse. The applicable definition for this case is 18 U.S.C. § 2241(a)(1) which states that aggravated sexual abuse is committed when a person knowingly causes another person to engage in a sexual act by using force against that other person.

         The court then determined that Myers's offense, sexual abuse in the second degree, met the requirements of a sexual act committed by force and was thus an aggravated sex offense.

         On appeal, Myers argues that the circuit court erred in its interpretation of what constitutes an aggravated sex offense under Arkansas Code Annotated section 12-12-903(3). We review questions of statutory interpretation de novo and construe criminal statutes strictly, resolving any doubts in favor of the defendant. Davis v. State, 94 Ark.App. 240, 228 S.W.3d 529 (2006). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id. In interpreting a statute, we construe it so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Burgess v. State, 2016 Ark. 175, 490 S.W.3d 645.

         Specifically, Myers argues that the circuit court erred in defining "force" in a way that nullified another subsection of the aggravated-sexual-abuse statute, and he claims that the court should have defined it to mean physical force. Myers contends that he did not commit any acts of force to engage the victim in sexual contact. The State does not address Myers's arguments but instead claims that the circuit court merely found that he had failed to prove that he was not likely to pose a threat to the safety of others.

         We disagree with the State. It is abundantly clear from the circuit court's order that the sole basis for the denial of the petition was the finding that, as argued by the State below, Myers had committed an aggravated sex offense and was subject to lifetime registration. The circuit court ruled on the force issue as follows:

The second requirement for sexual abuse in the second degree to be aggravated sexual abuse, a defendant must have committed the crime by using force. David Myers committed sexual abuse in the second degree when he engaged in sexual contact with a person not his spouse who was less than 14 years old. The State advises that the victim was six years old.
Myers argues that he was not accused of using physical force; therefore, the offense is not one that requires lifetime registration. Neither the federal nor state statute includes the term physical. The use of the term force without limiting it by a modifier indicates that the legislative intent is to include all of the types of force a person can employ to obtain his goal. Force includes the ability to sway or influence. Crimes committed against children have been enacted embracing the opinion that ...

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